The ''Racial Discrimination Act 1975'' (Cth)
[.] is an
Act of the
Australian Parliament
The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the governor-g ...
, which was enacted on 11 June 1975 and passed by the
Whitlam government. The Act makes
racial discrimination
Racial discrimination is any discrimination against any individual on the basis of their skin color, race or ethnic origin.Individuals can discriminate by refusing to do business with, socialize with, or share resources with people of a certain g ...
in certain contexts unlawful in Australia, and also overrides
state and territory legislation to the extent of any inconsistency.
The Act is administered by the
Australian Human Rights Commission
The Australian Human Rights Commission is the national human rights institution of Australia, established in 1986 as the Human Rights and Equal Opportunity Commission (HREOC) and renamed in 2008. It is a statutory body funded by, but opera ...
(AHRC). The president of the commission is responsible for investigating complaints. If a complaint is validated, the commission will attempt to conciliate the matter. If the commission cannot negotiate an agreement which is acceptable to the complainant, the complainant's only redress is through the
Federal Court of Australia or through the
Federal Circuit and Family Court of Australia. The commission also attempts to raise awareness about the obligations that individuals and organisations have under the Act.
The Act
Prohibition of racial discrimination in certain contexts
Racial discrimination occurs under the Act when someone is treated less fairly than someone else in a similar situation because of their race, colour, descent or national or ethnic origin. Racial discrimination can also occur when a policy or rule appears to treat everyone in the same way but actually has an unfair effect on more people of a particular race, colour, descent or national or ethnic origin than others.
It is against the law to discriminate in areas such as:
*Employment (section 15) - e.g. when seeking employment, training, promotion, equal pay or conditions of employment;
*Land, housing or accommodation (section 12) - e.g. when buying a house or when renting;
*Provision of goods and services (section 13) - e.g. when buying something, applying for credit, using banks, seeking assistance from government departments, lawyers, doctors and hospitals, or attending restaurants, pubs, entertainment venues;
*Access to places and facilities for use by the public (section 11) - e.g. when trying to use parks, libraries, government offices, hotels, places of worship, entertainment centres, hire cars;
*Advertising (section 16) - e.g. advertising for a job stating that people from a certain ethnic group cannot apply;
*Joining a trade union (section 14).
Cases
In ''Bligh and Ors v State of Queensland
996
Year 996 ( CMXCVI) was a leap year starting on Wednesday (link will display the full calendar) of the Julian calendar.
Events
By place
Japan
* February - Chotoku Incident: Fujiwara no Korechika and Takaie shoot an arrow at Retired Em ...
HREOCA 28'', the Human Rights and Equal Opportunity Commission (precursor to the Australian Human Rights Commission) found in favour of a number of
Aboriginal applicants who had worked on
Great Palm Island
Great Palm Island, usually known as Palm Island, is the largest island in the Palm Islands group off Northern Queensland, Australia. It is known for its Aboriginal community, the legacy of an Aboriginal reserve, the Palm Island Aboriginal Sett ...
Aboriginal reserve and were underpaid between 31 October 1975 (the Act's start date) and 31 May 1984.
was awarded to each applicant, although the evidence suggested that the loss of income to .
Following this case, the Queensland Government settled 5,729 claims with a single payment of under the Award Wages Process, established in May 1999, to Indigenous people employed by the government on Aboriginal reserves between 1975 and 1986 (the date their policy of paying below-award rates to Indigenous Australians
Indigenous Australians or Australian First Nations are people with familial heritage from, and membership in, the ethnic groups that lived in Australia before British colonisation. They consist of two distinct groups: the Aboriginal peoples ...
officially ended).[
In '']Wotton v Queensland (No 5)
''Wotton v Queensland'' (the Palm Island Class Action case) is a class action lawsuit brought against the State of Queensland and the Commissioner of the Queensland Police Service on behalf of 447 Aboriginal Australians and Torres Strait Islande ...
'' police raids and behaviour following the 2004 Palm Island community riot, sparked by the death in custody of an Aboriginal man, were found to have breached the ''Racial Discrimination Act'' with $220,000 in damages awarded in 2016.[.] Police actions were described in the judgement as "unnecessary, disproportionate" with police having "acted in these ways because they were dealing with an Aboriginal community." Dozens of police officers in riot gear wearing balaclavas with no identification and carrying large guns had marched into the community conducting early-morning raids on 27 November 2004. Residents reported officers kicking down doors, pointing guns at children's heads, and tasering residents. with one resident and his partner awarded $235,000 compensation for assault, battery and false imprisonment in a separate case. Subsequently, this led to a record class action settlement of $30 million and a formal apology issued by the Queensland State Government in May 2018.
Section 18C
Section 18C of the Act makes it is unlawful for a person to do an act in public if it is reasonably likely to "offend, insult, humiliate or intimidate" a person of a certain race, colour or national or ethnic origin, and the act was done because of one or more of those characteristics.[.]
While some conservative politicians have claimed the bar for breaching 18C is too low, courts have consistently shown that this is not the case, and to fall within 18C the speech must have "... profound and serious effects, not to be likened to mere slights."
Exemptions are provided in section 18D, including acts relating to artistic works, genuine academic or scientific purposes, fair reporting, and fair comment on matters of public interest.
Cases and determinations in relation to section 18C include the following:
* In ''Bryant v Queensland Newspaper Pty Ltd'' 997
Year 997 (Roman numerals, CMXCVII) was a common year starting on Friday (link will display the full calendar) of the Julian calendar.
Events
By place
Japan
* 1 February: Empress Teishi gives birth to Princess Shushi - she is the first ...
HREOCA 23, the predecessor of the AHRC, the Human Rights and Equal Opportunity Commission (HREOC) dismissed a complaint by an English person against use of the words " Pom" and "Pommy" used in newspapers.
* ''Rugema v Gadsten Pty Ltd & Derkes'' 997
Year 997 (Roman numerals, CMXCVII) was a common year starting on Friday (link will display the full calendar) of the Julian calendar.
Events
By place
Japan
* 1 February: Empress Teishi gives birth to Princess Shushi - she is the first ...
HREOCA 34, the HREOC awarded $55,000 in damages to an African former refugee who had suffered racial abuse in the workplace.
* In ''Combined Housing Organisation Ltd, Ipswich Regional Atsic for Legal Services, Thompson and Fisher v Hanson'' 997
Year 997 (Roman numerals, CMXCVII) was a common year starting on Friday (link will display the full calendar) of the Julian calendar.
Events
By place
Japan
* 1 February: Empress Teishi gives birth to Princess Shushi - she is the first ...
HREOCA 58, the HREOC dismissed a complaint against politician Pauline Hanson over comments about Aboriginal welfare policy.
* In ''Mcglade v Lightfoot'' 999 999 or triple nine most often refers to:
* 999 (emergency telephone number), a telephone number for the emergency services in several countries
* 999 (number), an integer
* AD 999, a year
* 999 BC, a year
Books
* ''999'' (anthology) or ''999: T ...
HREOCA 1, the HREOC dismissed a complaint against Senator Ross Lightfoot
Philip Ross Lightfoot (born 11 August 1936) is a former Australian politician. He was a Liberal member of the Australian Senate from 1997 to 2008, representing the state of Western Australia.
Early life
Lightfoot was born in Port Lincoln, Sout ...
over comments he had made that Aboriginal people were the most primitive people on earth and that aspects of their culture were abhorrent, on the basis that he had apologised in the Senate and retracted his comments.
* In ''Jacobs v Fardig'' 999 999 or triple nine most often refers to:
* 999 (emergency telephone number), a telephone number for the emergency services in several countries
* 999 (number), an integer
* AD 999, a year
* 999 BC, a year
Books
* ''999'' (anthology) or ''999: T ...
HREOCA 9, the HREOC found that a Councillor who had made comments about "shooting" Aboriginal people contravened section 18C.
* In ''Jones v Toben'' 000
Triple zero, Triple Zero, Zero Zero Zero, Triple 0, Triple-0, 000, or 0-0-0 may refer to:
* 000 (emergency telephone number), the Australian emergency telephone number
* "Triple Zero", a song by AFI from ''Shut Your Mouth and Open Your Eyes''
* Th ...
HREOCA 39 the HREOC found that a person had contravened section 18C when they referred to the treatment of Jews in the 1930s and 1940s as having been "mythologised". Following orders made by the Federal Court of Australia to enforce the commission's decision, in ''Toben v Jones'' 003 003, O03, 0O3, OO3 may refer to:
*003, fictional British 00 Agent
*003, former emergency telephone number for the Norwegian ambulance service (until 1986)
*1990 OO3, the asteroid 6131 Towen
* OO3 gauge model railway
*''O03 (O2)'' and other related ...
FCAFC 137 the Full Court of the Federal Court of Australia dismissed an appeal from those orders, in which the defendant challenged the constitutional validity of section 18C.
* In ''McMahon v Bowman'' 000
Triple zero, Triple Zero, Zero Zero Zero, Triple 0, Triple-0, 000, or 0-0-0 may refer to:
* 000 (emergency telephone number), the Australian emergency telephone number
* "Triple Zero", a song by AFI from ''Shut Your Mouth and Open Your Eyes''
* Th ...
FMCA 3, the Federal Magistrates Court of Australia
The Federal Circuit Court of Australia, formerly known as the Federal Magistrates Court of Australia or the Federal Magistrates Service, was an Australian court with jurisdiction over matters broadly relating to family law and child support, ad ...
found that a person had contravened section 18C by calling his neighbour a "black bastard".
* In ''Wanjurri v Southern Cross Broadcasting (Aus) Ltd'' 001 001, O01, or OO1 may refer to:
*1 (number), a number, a numeral
*001, fictional British agent, see 00 Agent
*001, former emergency telephone number for the Norwegian fire brigade (until 1986)
*AM-RB 001, the code-name for the Aston Martin Valkyrie ...
HREOCA 2, the HREOC found that Southern Cross Broadcasting and journalist Howard Sattler had contravened section 18C, and ordered each to pay the five complainants $10,000 in damages.
* In ''Eatock v Bolt
''Eatock v Bolt'' was a 2011 decision of the Federal Court of Australia which held that two articles written by columnist and commentator Andrew Bolt and published in ''The Herald Sun'' newspaper had contravened section 18C, of the ''Racial D ...
'' 011
The following is a list of different international call prefixes that need to be dialled when placing an international telephone call from different countries.
Countries by international prefix
Countries using optional carrier selection code ...
FCA 1103, the Federal Court of Australia held that newspaper commentator Andrew Bolt
Andrew Bolt (born 26 September 1959) is an Australian right-wing social and political commentator. He has worked at the News Corp-owned newspaper company The Herald and Weekly Times (HWT) for many years, for both '' The Herald'' and its succe ...
had contravened section 18C for comments made in relation to fair-skinned Aboriginal persons.
* In ''Prior v Queensland University of Technology & Others'' 016
HV-016 is a former military unit of Norway, that was a part of the Home Guard. It was established after 1985 to "stop terror- or sabotage actions that could weaken or paralyze Norway's ability to mobilize its military and its ability to resist".
...
FCCA 2853, the Federal Circuit Court of Australia
The Federal Circuit Court of Australia, formerly known as the Federal Magistrates Court of Australia or the Federal Magistrates Service, was an Australian court with jurisdiction over matters broadly relating to family law and child support, ad ...
summarily dismissed a claim brought by an indigenous staff member at the Queensland University Technology against certain students for comments made on Facebook after one of them had been evicted from a computer room set aside for indigenous students, on the basis that the claim had no reasonable prospects of success.
Complaint process and remedies
An aggrieved person may make a complaint of a contravention of the Act to the Australian Human Rights Commission. If the complaint cannot be resolved, then an application alleging "unlawful discrimination" may be made to the Federal Court of Australia or to the Federal Circuit Court. When such allegations are upheld, the court may make orders, including for compensation.
Analysis
Constitutionality
The source of the federal parliament's power to pass the Act is the external affairs power
Section 51(xxix) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs".
In recent years, most att ...
contained in section 51(xxix) of the Australian Constitution
Section 51(xxix) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs".
In recent years, most att ...
. Under that power, the federal parliament implemented international obligations arising under the 1965 , which Australia ratified in September 1975. The High Court of Australia confirmed that the external affairs power was a valid source of power for the Act in '' Koowarta v. Bjelke-Petersen'' (1982), and again in ''Mabo v Queensland (No 1)
''Mabo v Queensland (No 1)'',. was a significant court case decided in the High Court of Australia on 8 December 1988. It found that the ''Queensland Coast Islands Declaratory Act 1985'', which attempted to retrospectively abolish native title ...
'' (1988).
While the AHRC maintains that the Act provides an appropriate balance between freedom of speech and freedom from racial vilification, legal academics Forrester, Finlay and Zimmermann have suggested that section 18C of the Act, enacted in 1995, may be unconstitutional on the basis that it is inconsistent with the constitutional implied freedom of political communication
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed.
Background
Constitution ...
.
Law reform proposals
Section 18C of the Act has been a topic of debate, especially in recent years. While some conservative politicians have claimed the bar for breaching 18C is too low, courts have consistently shown that this is not the case, and to fall within 18C the speech must have "... profound and serious effects, not to be likened to mere slights."
In 1995, left-wing ABC journalist Phillip Adams
Phillip Adams, Philip Adams, or Phil Adams may refer to:
Sports
* Phillip Adams (American football) (1988–2021), American football cornerback
* Phillip Adams (sport shooter) (born 1945), Australian pistol shooter
* Phil Adams (cricketer) (born 1 ...
argued against the provision, saying that a better response to expressions of racial hatred was "public debate, not legal censure".
In 2011, the Federal Court ruled that commentator Andrew Bolt had contravened section 18C of the Act as he could not rely on the exemptions under Section 18D. Bolt said that the verdict was "a restriction on the freedom of all Australians to discuss multiculturalism and how people identify themselves".
The political allegiance of the presiding judge to the Australian Labor Party
The Australian Labor Party (ALP), also simply known as Labor, is the major centre-left political party in Australia, one of two major parties in Australian politics, along with the centre-right Liberal Party of Australia. The party forms t ...
has also been raised as an issue (Justice Bromberg had once stood for Labor pre-selection).[Andrew Bolt race-case judge ‘had ALP links’](_blank)
The Australian, Nov 16, 2016
In 2013, members of the Abbott Government proposed significant changes to section 18C in a draft bill put on public exhibition, which would have substantially limited the scope of the prohibition. The Attorney-General, George Brandis, defended the proposed changes, stating that people have "a right to be bigots". Trade Unionist Paul Howes
Paul Howes (born 23 August 1981) was involved in the Australian trade union movement from 1999 through 2014. His most recent position was as National Secretary of the Australian Workers' Union, the youngest person to serve in that position. In ...
argued that section 18C stretches out its fingers "into the realm of what Orwell might have called a Thought Crime". After public consultation and opposition by minority groups, the Government did not proceed with the proposed changes.
More recently, members of the Turnbull Government have proposed less significant and narrower changes to section 18C, and the Attorney-General, George Brandis
George Henry Brandis (born 22 June 1957) is a former Australian politician. He was a Senator for Queensland from 2000 to 2018, representing the Liberal Party, and was a cabinet minister in the Abbott and Turnbull governments. He was later ...
, has asked for the Joint Parliamentary Committee on Human Rights to conduct an inquiry on the appropriateness of section in its current form. In March 2016, the Australian Law Reform Commission
The Australian Law Reform Commission (often abbreviated to ALRC) is an Australian independent statutory body established to conduct reviews into the law of Australia. The reviews, also called inquiries or references, are referred to the ALRC by ...
called for review of section 18C, stating “In particular, there are arguments that s18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’." The ALRC noted that it had received "widely divergent views" on whether s 18C should be amended but found as follows:"In the ALRC’s view, s 18C of the Act would benefit from more thorough review in relation to implications for freedom of speech. In particular, there are arguments that s 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’. In some respects, the provision is broader than is required under international law, broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge." In 2016, Labor Senator Kimberley Kitching, said she was "very surprised" when Justice Bromberg decided to hear the Bolt case given, “He was an active ALP person, he was active enough that he was in a faction, he ran for preselection... Obviously he would have had some views about ndrew Bolt and perhaps he was not the best person to hear hecase.” Bromberg had run unsuccessfully for Labor preselection in Melbourne in 2001.
In November, 2016, the President of the Human Rights Commission Gillian Triggs
Gillian Doreen Triggs (born 30 October 1945) is an Australian academic specialising in public international law. In 2019, she was appointed by United Nations Secretary-General António Guterres as Assistant Secretary-General of the United Nati ...
voiced support for changes to 18C, saying that removing the words "offend" and "insult" and inserting "vilify" would strengthen the laws.
On March 30, 2017, the Australian Senate voted down changes to 18C with 31 votes; Labor
Labour or labor may refer to:
* Childbirth, the delivery of a baby
* Labour (human activity), or work
** Manual labour, physical work
** Wage labour, a socioeconomic relationship between a worker and an employer
** Organized labour and the la ...
, Greens, Lambie Lambie is a surname. Articles include:
* Ashton Lambie (born 1990), American cyclist
* Alex Lambie (1897–1963), Scottish footballer
* David Lambie (1925–2019), Scottish Labour Party politician
* Derek Lambie (born 1975), Scottish newspaper edi ...
, Xenophon
Xenophon of Athens (; grc, Ξενοφῶν ; – probably 355 or 354 BC) was a Greek military leader, philosopher, and historian, born in Athens. At the age of 30, Xenophon was elected commander of one of the biggest Greek mercenary armies o ...
voting against and 28 votes Liberal
Liberal or liberalism may refer to:
Politics
* a supporter of liberalism
** Liberalism by country
* an adherent of a Liberal Party
* Liberalism (international relations)
* Sexually liberal feminism
* Social liberalism
Arts, entertainment and m ...
, Derryn Hinch
Derryn Nigel Hinch (born 9 February 1944) is a New Zealand-born media personality, politician, actor, journalist and published author. He is best known for his career in Australia, on Melbourne radio and television. He served as a Senator for V ...
, One Nation, and Liberal Democrat
Several political parties from around the world have been called the Liberal Democratic Party or Liberal Democrats. These parties usually follow a liberal democratic ideology.
Active parties
Former parties
See also
*Liberal democracy
*Lib ...
for.
See also
*Hate speech laws in Australia
The hate speech laws in Australia give redress to someone who is the victim of discrimination, vilification, or injury on grounds that differ from one jurisdiction to another. All Australian jurisdictions give redress when a person is victimise ...
*List of anti-discrimination acts
This is a list of anti-discrimination acts (often called discrimination acts or anti-discrimination laws), which are laws designed to prevent discrimination.
Australia
* Anti-discrimination laws in Australia
**Age Discrimination Act 2004
** A ...
*Racism in Australia
Racism in Australia comprises negative attitudes and views on race or ethnicity which are related to each other, are held by various people and groups in Australia, and have been reflected in discriminatory laws, practices and actions (including ...
*Human rights in Australia
Human rights in Australia have largely been developed by the democratically-elected Australian Parliament through laws in specific contexts (rather than a stand-alone, abstract bill of rights) and safeguarded by such institutions as the indepen ...
References
{{reflist, 30em
External links
Racial Discrimination Act 1975
in the Federal Register of Legislation
The Office of Parliamentary Counsel (OPC) is an Australian Commonwealth government agency established under the ''Parliamentary Counsel Act 1970'' (Cth) within the Commonwealth Attorney-General's portfolio. OPC drafts all government Bills that ...
Guide to the Racial Discrimination Act
1975 in Australian law
Anti-discrimination law in Australia
Acts of the Parliament of Australia
Anti-racism in Australia
Gough Whitlam